707 F.

2d 785

Delo H. CASPARY, Appellant,

v.
The LOUISIANA LAND AND EXPLORATION COMPANY,
Appellee.
No. 83-1343.

United States Court of Appeals,

Fourth Circuit.
Argued April 14, 1983.
Decided May 11, 1983.

John Henry Lewin, Jr., Baltimore, Md. (Benson Everett Legg, Venable,
Baetjer & Howard, Baltimore, Md.), for appellant.
Francis B. Burch, Jr., Baltimore, Md. (Robert J. Mathias, David Clarke,
Jr., Piper & Marbury, Baltimore, Md., Cahill, Gordon & Reindel,
Washington, D.C.), for appellee.
Before WINTER, Chief Judge, and MURNAGHAN and ERVIN, Circuit
Judges.
MURNAGHAN, Circuit Judge:

At common law, a stockholder in a Maryland corporation enjoyed, regardless

of the substantiality of his shareholding, a right to inspect corporate records,
including a book listing all of the stockholders, simply upon the showing of a
proper purpose. Parish v. Maryland and Virginia Milk Producers Ass'n, 250
Md. 24, 88, 242 A.2d 512, 547 (1968). In 1868 a general business corporation
law was adopted by the Maryland General Assembly which, in Article 26 of the
Annotated Code of Maryland Sec. 5, addressed the matter of rights to inspect
corporate records generally and in Sec. 67 the matter of similar rights to inspect
stockholder lists.1 That legislation eliminated the proper purpose limitation
existing at common law. Consequently, after 1868 the statute afforded
everything the common law had granted to the stockholder and more, since it
too guaranteed the right of access to the stock ledger, yet freed the stockholder
from the necessity of pleading and proving a proper purpose. Thereafter in

1908 there was a general revision of the corporate article. The pertinent section
of that codification, Article 23 Sec. 73 of the Annotated Code of Maryland
(identified in the 1911 Annotated Code of Maryland as the successor to the
Article 26 Secs. 5 and 67 statutes enacted in 1868), permitted a stockholder or
stockholders holding 5% of the capital stock to inspect the stockholder list. The
section so providing, in its present form, now appears in the Corporations and
Associations Article of the Maryland Annotated Code as Sec. 2-513.2
2

Delo H. Caspary, alleging a proper purpose, namely, the desire to solicit

proxies in order to achieve a change in management of a corporation of which
he is a shareholder, and with whose operations he is dissatisfied, has sought to
obtain access to the stock ledger of the Louisiana Land and Exploration
Company, a Maryland corporation. The corporation is a large one, it being
estimated that, while Caspary's holdings of stock in the corporation are worth
$2,000,000 to $3,000,000, a 5% ownership of stock would have an aggregate
value of approximately $55,000,000.

The corporation has refused to permit inspection of the stock ledger on the
grounds that Sec. 2-513 abrogated the common law, and set up requirements
which Caspary does not satisfy.

That position conflicted with Caspary's professed understanding that the

statutory provisions were in addition to, not in replacement of, the common law.
Not surprisingly, on April 4, 1983, the present diversity case was instituted by
Caspary in the United States District Court for the District of Maryland to
secure access to a list of stockholders. The district court, on April 8, 1983,
stated its conclusion that the failure to meet the requirements of Sec. 2-513
rendered Caspary not entitled to the relief he sought. Judgment dismissing the
complaint, accordingly, was entered for the company. An immediate appeal
was taken. The degree of urgency is high in view of Caspary's wish to conduct
a proxy fight to obtain shareholder votes to be cast at the election of directors
scheduled to be held at an annual meeting, the date for which has been fixed as
May 12, 1983. We accordingly have heard the appeal on an expedited basis on
Thursday, April 14, 1983. That afternoon, following conclusion of oral
argument, we announced our decision affirming the judgment of the district
court, 560 F.Supp. 855. Chief Judge Winter dissented from the decision
reached by Judges Murnaghan and Ervin. We noted that written opinions
would follow.

Addressing the merits, we have been cited to, and have found no Maryland
authority squarely disposing of the matter to which we can turn for ready
disposition. While presented by diligent and imaginative counsel appearing for

Caspary with arguments based on supposed policy considerations and

expounding a view of history concerning the rugged capacity of the common
law to withstand repeal or abrogation by a statute dealing with the same subject
matter, we have been directed to no Maryland authority (other than the district
court opinion in the case sub judice ) which really addresses in the context of
stock ledger inspection rights the position for which Caspary argues.
6

On the other hand, Louisiana Land has had the good fortune to be able to cite
two cases construing the Maryland law which give strong indications of the
result the Maryland Court of Appeals would reach if it were to address the
question presently before us. First we turn to Parish v. Maryland and Virginia
Milk Producers Ass'n, supra. There, the question for resolution was whether the
statute, by analogizing a member in a membership corporation to a stockholder
in an ordinary business corporation, set up a prerequisite of a group of 5% of
the members insisting on production to trigger a successful demand for a list of
all members. The court in Parish held that the analogy was not apt and that,
consequently, the 5% requirement had no application to a membership
corporation. The opinion for the Court of Judge Wilson K. Barnes, while,
therefore, not concerned with a stockholder's rights of inspection of a
company's records, nevertheless, provided two salient insights into how the
Maryland Court of Appeals might be expected to resolve the issue which
confronts us.

First, in a passing allusion the court identified as the purpose of the 5%

restriction the prevention of "an abuse of the common law right of a single
stockholder to demand inspection of books, etc., with possible attendant
substantial expense when the amount of the stockholding was insignificant
compared to the whole stock structure. It was, in short, to prevent 'strike' suits
by litigious stockholders holding less than five percent of the corporate stock
...." Parish, supra, 250 Md. at 90-91, 242 A.2d at 549 (emphasis in original).
That observation tends to support Louisiana Land's side of the case, suggesting
as it does that the common law was to yield to the statute, yet it is but a dictum,
and, as such, could perhaps be distinguished if it were at odds with another
stronger contra-indication, either obiter statement or persuasive policy
consideration.3

The second insight to be derived from Parish is more, however, than dictum.
The member there seeking a membership list had established the existence of a
proper purpose for the request.4 Accordingly, if Caspary's contention in the
present case were sound, the court in Parish unnecessarily labored (250 Md. at
86-93, 242 A.2d at 547-550) to rule that a member in a membership corporation
is not to be equated or analogized to a stockholder. That question would not

even have arisen if a stockholder, and so, a fortiori, a member (present as he

would be only by analogy to a stockholder) were free of the necessity for a 5%
showing upon demonstration of a proper purpose. The whole objective of the
court's inquiry was to determine whether the 5% requirement had to be met.
Obviously, the Maryland court assumed it would apply were Parish a
stockholder in a business corporation rather than a member in a membership
corporation.
9

Furthermore, that intimation from Parish is fortified by the recent decision of

Rosengarten v. Buckley, Civ. No. HM-80-2935 (D.Md., February 23, 1982,
Murray, J.). In responding to a corporation's insistence on the security required
of a stockholder holding less than 5% of the stock (Maryland Rules of
Procedure Sec. 328(b)), the shareholder sought to have the court condition the
security on the provision to him of a shareholder list. Judge Murray declined to
do so, saying:

10 only does Maryland law not provide for such a procedure, but another statute
Not
expressly limits those persons entitled to a shareholder list to persons who hold more
than five percent of a corporation's stock. MD.CORP. & ASSOC.CODE ANN., Sec.
2-513. The plaintiff's requested procedure would thus endow him with a right he
does not possess under Maryland law and one that the legislature of this state has
clearly chosen not to give him.
11

Caspary would construe the omission by Judge Murray of any mention of a

common law right to inspect stock records for a proper purpose and without
meeting the statutory 5% requirement as an inadvertent oversight. Judge
Murray is simply too careful for such a suggestion to be lightly accepted. It is
far more probable that, if Judge Murray had entertained any belief that a
common law right existed, he would have explored the matter of whether the
party seeking the stockholder list had a proper purpose. We read the omission
as evidence of Judge Murray's belief that there was no such common law right.
Thus, Judge Murray denied the request on the grounds that Sec. 2-513
expressly limited entitlement to those persons holding 5% or more of the
corporation's stock.5

12

To counter those Maryland authorities, Caspary relies especially on the New

York law.6 Aside from the fact that we are bound to determine the law of
Maryland and not the law of another state, the New York statute held not to
have supplanted or replaced the common law right specified that "[n]othing
herein contained shall impair the power of courts to compel the production for
examination of the books and records of a corporation." The power of the
courts particularly operates to develop, enforce and maintain the common law.

13

There is no similar Maryland statutory language preserving to the courts the

continued right to compel production of the stock ledger as theretofore
permitted by the common law.7 It is true, of course, that the Maryland
Constitution guarantees the continued enjoyment by the people of the common
law "subject, nevertheless, to the revision of, and amendment or repeal, by the
Legislature of this State." In Re Davis, 17 Md.App. 98, 102, 299 A.2d 856, 859
(1973) makes it all very clear:

14

The common law, like Acts of Assembly, is subject to the control and
modification of the legislature, and may be abrogated or changed as the
General Assembly may think most conducive to the general welfare.... [T]he
common law is subject to change by the legislature ....

15

That truism, however, affords no solace similar to that provided by the New
York statute to someone arguing that a common law rule has not been
abrogated by statute. It merely sets forth the general question posed in each
such case, namely, whether or not modification or abrogation of the common
law by statute has occurred.8

16

Reference by counsel for Caspary to Arthur W. Machen's imposing treatise on

the Modern Law of Corporations (1908) is resort to extremely respected
authority. Unfortunately, however, the section cited, Sec. 1100 at p. 896, is not
illuminating for present purposes. It states that a statute conferring "upon
shareholders a limited right to inspect the company's books should not be
construed to restrict by implication their common-law rights." (Emphasis
supplied). The question still remains as to whether the statute here is, in fact, so
limited that it was not intended by the legislature, as part of a general, wideranging statutory codification, to replace common law rules dealing with the
same subject matter. Machen forthrightly acknowledges that the answer in each
particular case "must depend on the scope of the statute." Id., Sec. 1109, at pp.
902-03.9

17

5 Fletcher, Cyclopedia of Corporations, Sec. 2215.1 (Rev.Vol.1976), also cited

by Caspary, is not particularly helpful for similar reasons, and, indeed, rather
supports his opponent. It observes that the statutes in many cases are not
merely a reenactment of the common law, but rather enlarge the right and
remove common law restrictions. It further points out the trend away from an
earlier tendency to expand the inspection rights of shareholders beyond their
rights at common law in favor of limitations restricting the rights.

18

It is by no means an irrelevancy to observe that in Maryland both directions

alluded to by Fletcher have been followed. The 1868 broad expansion of rights
to inspect the stock book appears to have occupied the field, abrogating the
common law. Then, in the second phase, when in 1908 a restriction was
imposed, it was only the 1868 statute which was in place at the time of
enactment, and its amendment by the 1908 statute has not been questioned, and
could not be for any reason apparent to us.10
19

A principal obstacle for Caspary indeed lies in the fact that, in 1868, in a
general codification of the statutory law dealing with business corporations, the
Maryland General Assembly imposed on a corporation the responsibility to
maintain a stock ledger, and provided to a stockholder, holding as little as a
single share of stock, regardless of the percentage of his holding, a right to
inspect the stock ledger, regardless of purpose. See Article 40, Revised Code of
Maryland Sec. 67 (1878); Article 23 Annotated Code of Maryland (1904 ed.)
Sec. 80. That was hardly the limited right to inspect referred to by Machen.
Every stockholder was accorded an unlimited right of access to the stock
ledger, with no responsibility for showing any purpose. See Parish, supra, 250
Md. at 90-91, 242 A.2d at 549. Caspary in his Brief freely acknowledges that,
under the 1868 statute a proper purpose was not required and that "[t]he right to
the list was absolute, conditional only upon the ownership of the stock."

20

In point of indisputable fact, the statute covered everything which the common
law allowed in the way of stock book inspection and went further.11 From 1868
to 1908, consequently, there was absolutely no occasion for anyone to seek
recourse to what had been the common law prior to 1868. In every imaginable
case the statute would do at least as well; in some it would do better.12

21

When a general codification has occurred, a statute fully occupying the field
covered by the common law, as certainly was here the case, replaces and
extinguishes the common law. See Lutz, supra, 167 Md. at 15, 172 A. at 356
("A statute which deals with an entire subject matter is generally construed as
abrogating the common law as to that subject."). Otherwise the law becomes
cluttered with moribund rules serving no useful purpose, yet obviously having a
great potential for mischief if they automatically spring back to life when any
subsequent change in the statute takes place. There was a lapse of forty years
between 1868 and 1908. It simply ignores reality to ascribe to the Maryland
General Assembly an unstated assumption, when it amended the statute to
require a 5% holding to exercise the formerly unlimited right of inspection, that
it would simultaneously be resuscitating sub silentio a common law provision
given a decent burial four decades before. Rather, abrogation was the
legislative intent.13 The ascription of such an unexpressed assumption makes
very little sense when it is appreciated that it would greatly reduce the

effectiveness of the 1908 legislation. While a stockholder with less than 5%

could, on Caspary's theory, be obliged to prove a proper purpose, few would
appear likely to be acting malevolently or contrary to corporate best interests. 14
Hence most requests would, in the end, be successful, making the 5%
requirement largely illusory. In the language of Lutz, supra, n. 7, Caspary's
contention, if successful, would in effect deprive the 1908 statute of its
efficacy.15
22

In 1950, in preparation for what became the substantial 1951 revision of the
Corporations Article of the Annotated Code of Maryland, a distinguished
Revision Commission16 prepared a report. The reporter to the Commission, C.
Keating Bowie, Jr., an accomplished member of the practicing Maryland Bar,
had this to say in his Explanatory Notes on the subject of stockholder inspection
rights:

23
Aside
from specifying with greater particularity the papers and records which shall
be available for inspection, this section makes only one important substantive
change in the present law. In addition to the requirement that a stockholder have 5%
of the outstanding stock of any class in order to justify an inspection of certain
records, as provided in the present law, the proposed section also requires that the
stockholder shall have held such stock for a period of at least six months.
24

Reporter's Explanatory Notes printed in H.M. Brune, Maryland Corporation

Law and Practice, 677, 691 (Rev.Ed.1953).

25

It would do a great injustice to ascribe to Mr. Bowie a conscious differentiation

between statutory law and common law, and an intention in using the words "in
the present law" to put the reader at his peril to appreciate that there was also at
present a common law doctrine in revived existence since 1908 floating about,
quite at variance with Mr. Bowie's description of what the law appeared to him
to be. He, someone extremely qualified to know, clearly proceeded on the
understanding that the statute fully occupied the field.

26

It is important to observe that Caspary has had no occasion to plead looting of

corporate assets or other fraudulent behavior by the incumbent directors of
Louisiana Land. We, of course, have no occasion to address, much less decide,
the question of what access to the stock ledger would then exist. It may well be
that a short duration stockholder with less than 5% of the stock nevertheless
might be held to have a right to inspect stock books and other documents to
which the 5% and six months' requirements of Sec. 2-513 apply if he could
demonstrate looting of the corporate assets by the incumbent directors or other
serious malfeasance. Here, however, the charge is no more than arguably poor

management, not improper or illegal practices to the corporation's detriment.

Fraud, it is sometimes said, vitiates all, but here we have no case of fraud. The
continued existence of one common law right simply does not establish the
existence of another.
27

Hence, while the opinions are distinguishable in some respects, both the
Maryland Court of Appeals in Parish v. Maryland and Virginia Milk Producers
Ass'n and a respected United States District Judge for the District of Maryland,
Herbert M. Murray in Rosengarten v. Buckley, have read the statute to exclude
a common law right in stockholders holding less than 5% to seek access to the
stock ledger even where they adequately allege a proper purpose. Analysis fully
justifies that reading. No Maryland authority points to the opposite conclusion.

28

Judging, therefore, from the best evidence available as to the current state of
the Maryland law, we have decided that the judgment below should be
affirmed. In reaching our conclusion as to what the Maryland Court of Appeals
would do, we by no means seek to intimate that the rule we have accepted as
the one that court would reach constitutes the only possible one. In predicting
the action another court would take, we deal only in terms of what is more
likely and what is less likely. Shortness of time compels a prompt resolution of
the question. Diversity jurisdiction has been resorted to by the plaintiff.17 No
suggestion for a certification of the question to the Maryland Court of Appeals
has been made18 and probably would be impractical given the time limitations.
Hence, left to our own devices, we must do our best in making a principled
decision as to what the Maryland Court of Appeals would do at this point in
time.

29

We have given such weight as we deem appropriate to the consideration that,

had this question arisen in 1908 when the statutory 5% requirement first
appeared, or shortly thereafter, the decision might arguably have been
otherwise. Three-quarters of a century ago, the veneration for the common law
and the dislike for statutory intrusion upon it were greater than they are today
in a society far more accustomed to legislative governance.19 However, we deal
with the current situation in 1983 and must give our answer in terms consistent
with contemporary attitudes and understandings, for we would expect the
Maryland Court of Appeals to do the same.

30

AFFIRMED.
HARRISON L. WINTER, Chief Judge, dissenting:

31

The sole question before us is whether a shareholder of a Maryland corporation

has a common law right to inspect the stockholder list of that corporation for a
"proper purpose," irrespective of the extent of his holdings. The district court
ruled that he did not, and the majority affirms. Because I think that there is such
a right, I respectfully dissent.

I.
32

The parties, the majority and I are agreed that, at common law, a stockholder in
a Maryland corporation, irrespective of the extent of stock holdings, enjoyed a
right to inspect corporate records, including stockholders lists, provided there
was a proper purpose for the inspection.1 See Parish v. Maryland & Virginia
Milk Producers Association, 250 Md. 24, 242 A.2d 512, 547 (1968). We are
agreed also that Article 5 of the Maryland Declaration of Rights continues in
force in Maryland the common law of England, subject only to revisions,
amendments or repeal by the Maryland General Assembly. The right of
inspection claimed by Caspary is one such common law right.2

33

In 1868, the Maryland legislature first enacted a comprehensive statute

governing the formation of business corporations, their powers and their
governance and defining the rights of stockholders, (Chapter 471 of the Laws
of 1868), revised it in 1908 (Chapter 240 of the Laws of 1908), and revised it
again from time to time thereafter. The text of the present statute with respect to
the right of stockholders to inspect and copy a corporation's stock ledger is
found in Sec. 2-513, Annotated Code of Maryland, Corporations and
Associations, set forth below.3 This section should be read in tandem with Sec.
2-512 which sets forth a stockholder's other rights of inspection.4 Briefly stated,
Sec. 2-513 gives an unqualified right to inspect and copy stock ledgers to any
one or more persons who together own at least 5 percent of the stock of any
class of the corporation for at least six months.

34

As the majority implicitly acknowledges, see ante at 788-791, neither Sec. 2513 nor any uncodified language of any Act which either enacted or amended it
expressly repealed the common law qualified right of inspection.5 Thus we
must consider if there has been an implied repeal.

II.
35

The Maryland precedents give ample recognition to the constitutional right of

the Maryland legislature to revise, amend or repeal the common law. However,
because the Declaration of Rights guarantees an entitlement to the common

law, the Maryland courts have generally inferred a presumption of common law
vitality absent specific conflicting legislation. See, e.g., Gray v. State, 43
Md.App. 238, 403 A.2d 853, 856-57 (1979) (citing cases). In the leading
decision of the Maryland Court of Appeals, Lutz v. State, 167 Md. 12, 15, 172
A. 354, 356 (1934), the principles announced were that "to hold that a statute
has abrogated common law rights existing at the time of its enactment, it must
clearly appear that they are repugnant to the act, or the part thereof invoked,
that their survival would in effect deprive it of its efficacy and render its
provisions nugatory." As an additional category of cases in which implied
repeal may be found, Lutz also recognized that "a statute which deals with an
entire subject-matter is generally construed as abrogating the common law as to
that subject." Id.
36

An important correlative principle was enunciated by the Maryland Court of

Special Appeals in Neal v. State, 45 Md.App. 549, 413 A.2d 1386, 1387
(1980). There the defendant, charged with the common law crime of indecent
exposure, argued that the common law in the area had forever been
extinguished by the passage in 1967 of an express statutory provision dealing
with the same conduct. The court noted that the common law crime had in fact
been supplanted by statute during the life of the statute, but looked to a
subsequent legislative revision amending the 1967 statute in a way no longer
inconsistent with the common law. Rejecting defendant's contention regarding
the permanent death of the common law because "he misconstrues the
principles applied in Lutz", the Court of Special Appeals followed the rule of
construction that "[w]hen a statute abrogating a principle of the common law is
repealed, the common law principle is revived." Id. at 1387. That such a
principle obtains in the field of criminal law, where constitutionally rooted
considerations of fair warning and avoidance of unfair surprise are central to a
valid conviction, provides all the more reason for rejecting the notion that the
common law right at issue was buried forever in 1868.6

37

As an exercise of reasoning in applying the Maryland authorities, then, I would

conclude that the legislature did not abrogate sub silentio the common law right
by enactment of the statutory right. The former is a qualified right exercisable
only upon a showing of a proper purpose. The latter is a much more expansive
unqualified right exercisable just by virtue of 5 percent ownership existing for
at least six months prior to its exercise. 7 The two rights supplement one
another; while, in a given situation, there may be some overlap, each can be
enforced without rendering the other nugatory. There is no inconsistency.

38

I recognize also that Sec. 2-513 is only one section of a comprehensive

compilation of enactments relating to corporations, but I do not see how the

Corporations and Associations article of the Maryland code can be said to

displace the common law of corporations in its entirety. First, there is the
savings clause in Sec. 1-102(c) and the legislative declaration in Sec. 1-102(d)
that the implied repealing effect of the article is limited to inconsistent
provisions of "the Code." See supra at n. 5. More importantly, the Corporations
article, unlike some other enactments such as the Workmen's Compensation
article,8 has not been construed by the Maryland courts to occupy the field of
corporate law so completely as to abrogate all applicable common law. For
example, the duties and liabilities of corporate officers and directors are
extensively regulated in Secs. 2-401 through 2-418, yet the Maryland courts
have looked to common law fiduciary standards to supply the basic law
governing their relationship to the corporation unless there is a specific contrary
statutory provision. See, e.g., Merchants Mortgage Company v. Lubow, 275
Md. 208, 339 A.2d 664, 669 (1975); Rolling Inn v. Iula, 212 Md. 596, 130
A.2d 758, 759-60 (1957) (self-dealing); Levin v. Levin, 43 Md.App. 380, 405
A.2d 770, 777 (1979) (constructive presidency of corporation, imposing
fiduciary duties on officeholder).9
39

My view that a common law right of inspection exists in Maryland despite Sec.
2-513 has impressive support. Section 2-513 was first enacted in 1908, and,
contemporaneous with its enactment, Arthur W. Machen, a respected Maryland
authority, wrote, in II Modern Law of Corporations, Sec. 1100, p. 896 (1908),
that, in his view, such statutes generally did not supplant the common law,
because "statutes which confer upon shareholders a limited right to inspect the
company's books should not be construed to restrict by implication their
common-law rights." While Machen's view is not, of itself, dispositive, it is the
strongest statement available to us of what the understanding of the legislature
of his day would have been in passing a 5 percent unqualified inspection right,
i.e., that the courts would presume not to construe a restriction on the common
law by implication.

40

After Sec. 2-513 was re-enacted to cast it in substantially its present form,
Machen's early view was echoed years later by Herbert M. Brune, an equally
respected Maryland authority, in Maryland Corporation Law and Practice,
Section 383, p. 445 n. 26 (Rev. ed. 1953):

41

The further restriction of the statutory right under the 1951 revision would
permit a persuasive argument to a court of equity to grant an application by a
substantial stockholder for leave to examine the books, although he had not
held his stock for a sufficient period or could not otherwise qualify under the
statute. The Court of Appeals has stated that, fundamentally, the right to inspect
the books rests on the proposition that those in charge of the corporation are, in

substance, merely the agents of the stockholders who are the real owners of the
property .... The basic relationship of the stockholder to his corporation is not
altered by the statutes, and it may well be that these statutes are intended to
grant additional and supplementary rights of inspection, in aid of the basic
general right. (Emphasis added).
42

The majority artfully intimates that by referring to a "substantial" shareholder,

the author impliedly embraced the majority's view that the 5 percent stock
holdings requirement was exclusive. Ante, at 790 n. 8. Yet the text
accompanying the cited footnote shows that his belief as to the state of the law
was precisely the opposite:

43

The statutory right, however, is possibly supplemental to the common-law right

of reasonable access to by-laws, minute books and stockholders' lists, and may
not supersede such right altogether.

44

Brune, supra, at 445. This conclusion is not limited to the six months' holding
requirement added in 1951, but rather when examined in full discloses that,
except for some residual qualification attendant to the absence of a state court
decision squarely so holding, Brune was in accord with Machen's view that the
common law right survived the 5 percent statute.10

45

The cases in other jurisdictions and non-judicial authorities are either fully in
accord with my conclusion that a statute broadening the right of inspection but
conditioning it upon the duration and extent of stock ownership does not
abrogate the common law right of inspection, or else recognize that the ousting
of the common law by such a statute does not necessarily obtain. See Tucson
Gas & Elec. Co. v. Schantz, 5 Ariz.App. 511, 428 P.2d 686 (1967); State ex rel.
Grismer v. Merger Mines Corporation, 3 Wash.2d 417, 101 P.2d 308 (1940);
Estate of Bishop v. Antilles Enterprises, 252 F.2d 498 (3 Cir.1958); State ex rel.
Great Fidelity Insurance Company v. Circuit Court of Posey County, 259 Ind.
441, 288 N.E.2d 143 (1972); State v. Crookston Trust Co., 222 Minn. 17, 22
N.W.2d 911 (1946); Sivin v. Schwartz, 254 N.Y.S.2d 914 (1964).11 Other New
York cases express the same holding.12 See also Watson, Protecting the
Shareholders' Right to Inspect the Share Register in Corporate Proxy Contests
for the Election of Directors, 50 So.Cal.L.Rev. 1273, 1280 n. 39 (1977); H.
Henn, Handbook of the Law of Corporations, 397 (2d ed. 1970); 5 Fletcher,
Cyc. of Corporations, Sec. 2215.1 (1976 rev. ed.). This overwhelming trend
cannot be ignored; we have previously recognized that where no Maryland case
is directly on point, interpretation of another state's law, even by another federal
court, will be taken as controlling on a materially similar issue. Tillman v.
Wheaton-Haven Recreation Assoc., Inc., 580 F.2d 1222, 1227-28 (4

Cir.1978).13
46

In summary, in carrying out my obligation in this case to predict Maryland law,

I am persuaded that the Maryland courts would continue to recognize and give
effect to the common law right of any stockholder to inspect the stock ledger of
the corporation in which he owns shares for any proper purpose.

III.
47

I deal next with the arguments advanced by the defendant and embraced by the
majority to reach a contrary conclusion.

48

The principal thesis advanced in opposition to my view stems from the

legislative history of Sec. 2-513. The factual basis for the argument begins in
1868, when the Maryland legislature gave all stockholders and members of
corporations the unqualified right to inspect any corporate records at any time
(Ch. 471, Acts of 1868). Then, in 1908, this right was limited with respect to
stockholders to those who owned 5 percent of any class of stock (Ch. 240, Acts
of 1908). Still later the 1908 restriction was lessened with respect to certain
records other than stock ledgers (Sec. 2-512). From this it is argued that
statutory law completely occupied the field in 1868, so that when the right of
inspection was contracted in 1908, it could not have been intended that a pre 1868 common law right of inspection be revived.

49

There are, in my view, two answers. First, as already suggested, the argument
flies in the teeth of Neal v. State, supra, because it presupposes that when the
legislature codified and expanded the common law right in 1868, the common
law would have been wiped out. Neal is specific in saying that "[w]hen a statute
abrogating the common law is repealed, the common law principle is
revived."14 Second, the argument is belied by Parish when that decision is
closely analyzed.

50

Parish, so far as is pertinent here, was a derivative suit by a member of a

member corporation to redress wrongs done to the corporation by its officers
and directors. Among the relief sought was inspection of corporate records
including the membership list. Disclosure was resisted on the ground that it was
not authorized by the Maryland statutes regulating a member's right of
inspection. In the 1868 statute already referred to, the Maryland legislature had
given an unqualified right of inspection to members of non-stock corporations
as well as to stockholders of stock corporations. Parish, supra, 242 A.2d at 54748. In the 1908 revision, no mention of members was made; from this omission

it was argued that a member's right of inspection ceased to exist after 1908. The
argument was rejected, however, and the court held that after 1908 a member
had a right of inspection of the books and records of the member corporation,
including the list of the general membership. Id. at 549-50.
51

The significance of Parish is that, in full accord with Neal, it rejected the idea
that the repeal or modification of a statute abrogating or at least embodying the
common law meant that the common law right ceased to exist. If the majority's
premise were correct, the very common law right found in Parish would have
ceased for members as of 1868. Instead, the Court of Appeals applied the
common law to permit inspection of the membership list. Similarly, when the
Maryland legislature broadened the common law right of inspection for
shareholders and members in the 1868 act, it did not, to my mind, obviate the
qualified right of inspection for a proper purpose which had existed at common
law, nor did it do so when it limited the unqualified right of stockholders in
1908.15

IV.
52

Since I would reverse the judgment of the district court and return the case for
further proceedings, it is appropriate that I comment on the nature of the relief
that should be granted. Although only mildly contested, it has not been
judicially determined whether plaintiff seeks to exercise his right of inspection
for a "proper" purpose. That issue should not present great difficulty for there is
considerable authority for the proposition that inspecting and copying for the
purpose of solicitation of proxies is a proper purpose. See, e.g., Protecting
Shareholders' Right, supra, 50 So.Cal.L.Rev. at 1282; 5 Fletcher, supra, Sec.
2223.2; In re LTV Securities Litigation, 89 F.R.D. 595 (N.D.Tex.1981); Weber
v. Continental Motors Corporations, 305 F.Supp. 404 (S.D.N.Y.1969); NVF
Company v. Sharon Steel Corporation, 294 F.Supp. 1091 (W.D.Pa.1969);
Hatleigh Corporation v. Lane Bryant, Inc., 428 A.2d 350 (Del.Ch.1981).16

53

The annual meeting of the defendant is set for May 12, 1983. Plaintiff sought
access to the stockholder's ledger on April 4, 1983. Since in my view the
request has probably been improperly and illegally denied, I would think that
the district court upon proper application should give serious consideration to
delaying the meeting until plaintiff's rights have been adjudicated17 and, if
plaintiff prevails, thereafter until plaintiff's rights have been vindicated.

ADDENDUM
54

Following announcement of the panel decision and the dissent, Appellant, by

petition filed April 19, 1983, sought rehearing and made a suggestion for
rehearing en banc. Before action could be taken with respect to rehearing or
rehearing en banc, Appellant's counsel, by motion filed April 28, 1983, notified
the Court that the case had become moot.

The 1868 statute substantially broadened what had theretofore been the
common law rule. Parish, supra, 250 Md. at 89-90, 242 A.2d at 547-48

In 1951, an additional restriction on the statutory right of access of the

stockholder to the stock ledger was imposed. A six months' holding period had
first to be met

In fact, however, the Maryland Court of Appeals in Homer v. Crown Cork &
Seal Co. of Baltimore City, 155 Md. 66, 76, 141 A. 425, 430 (1928) recognized
that "[e]ven a shareholder does not enjoy the unlimited right to demand and
receive information in respect to corporate affairs," citing the pertinent sections
in the Corporations Article of the Annotated Code, especially the section
setting the 5% requirement for inspection of the stock ledger. Cf. Wight v.
Heublein, 111 Md. 649, 657, 75 A. 507, 509 (1910) ("In this state the right [of
access to corporate records] is secured by statute (Code Article 23, Sec. 5) ....")
(Emphasis supplied)

In Parish, supra, 250 Md. at 91, 242 A.2d at 549, it is observed that "under the
allegations of the complaint it appears that the purpose of the demand for
inspection was an entirely proper one intended for the ultimate benefit of the
Association itself."

The decision of Judge Edward S. Northrop in the district court constitutes an

authoritative source as well. In determining state law in diversity cases where
there is no clear precedent, courts of appeal are disposed to accord substantial
deference to the opinion of a federal district judge because of his familiarity
with the state law which must be applied. E.g., Hartford v. Gibbons & Reed
Co., 617 F.2d 567, 569 (10th Cir.1980)
Here, however, we have a panel on appeal which includes two judges who also
have Maryland antecedents. Their views differ as to the proper outcome of the
case. In such circumstances deference to the opinion of the one who disagrees
with the district judge should serve to neutralize any support deriving from
merely the existence, as distinct from the contents, of Judge Northrop's opinion.
As to the latter, however, obviously the panel majority is at one with him.

The law of other jurisdictions is not as one-sided as the dissent would suggest.

See Neiman v. Templeton, Kenly & Co., Ltd., 294 Ill.App. 45, 13 N.E.2d 290
(1938); Morris v. Broadview, 385 Ill. 228, 233-34, 52 N.E.2d 769, 771 (1944);
Daurelle v. Traders Federal Savings & Loan Assn., 143 W.Va. 674, 689, 104
S.E.2d 320, 330 (1958) ("It indicates clearly that the Legislature by the
enactment of the current statute intended to abrogate, or at least to limit, the
common-law and statutory rights of a stockholder of a joint stock corporation to
the extent indicated by the language of the statute and to give him only such
rights of examination and inspection of the records of the corporation as are
expressly mentioned in the statute.")
In short, law elsewhere goes both ways, and does not suffice to outweigh the
indications flowing from respected Maryland sources as to what the law is in
that state.
7

It is important to note that, when, in 1951, the Maryland Legislature amended

the statute now codified as Sec. 2-513, to add a six months' holding
requirement, it employed to some extent the American Bar Association Model
Business Corporation Act. 1 Fletcher, Cyclopedia of Corporations Sec. 2.2
(Rev.Vol.1974). The "some extent" did not reach to the Model Business
Corporation Act's proposed language reading:
Nothing herein contained shall impair the power of any court of competent
jurisdiction, upon proof by a shareholder of proper purpose, irrespective of the
period of time during which such shareholder shall have been a shareholder of
record, and irrespective of the number of shares held by him, to compel the
production for examination by such shareholder of the books and records of
account, minutes and record of shareholders of a corporation.
It seems most significant that Maryland omitted the very language supporting
the New York rule. Such a difference in choice indicates, indeed mandates, a
difference in result.

The opinion in Lutz v. State, 167 Md. 12, 172 A. 354 (1934) observes that
where "a statute and the common law are in conflict, the common law yields to
the statute to the extent of the inconsistency," and "a statute which deals with
an entire subject matter is generally construed as abrogating the common law as
to that subject." On the facts of the Lutz case the common law crime of
maintaining a bawdyhouse was deemed to survive, despite statutory enactments
dealing with the subject, precisely because the statute and the common law
"were directed to different objects." The statute did not address the subject
matter covered by the common law
It is also apparent from a comparison of the statute and the common law
relating to keeping a bawdyhouse that they were directed to different objects, in

that while the common law dealt with a specific nuisance that of maintaining a
blatant and noisome establishment for licentious commerce irrespective of
whether such commerce involved hire or payment, Id., Wharton on Crimes,
Sec. 1728, the statute is directed to the suppression of sexual vice and
perversion practiced for gain, and condemns equally those employed in
connection with the commerce, the patrons of the establishment used therefor
and the keeper thereof.
167 Md. at 16, 172 A. at 356
In the context of differences between statute and common law, the Lutz court
had this to say (quoting 25 R.C.L. 1054):
It has been said that statutes are not presumed to make any alterations in the
common law further than is expressly declared, and that a statute, made in the
affirmative without any negative expressed or implied, does not take away the
common law. The rules of the common law are not to be changed by doubtful
implication, nor overturned except by clear and unambiguous language. In
order to hold that a statute has abrogated common law rights existing at the date
of its enactment, it must clearly appear that they are repugnant to the act, or the
part thereof invoked, that their survival would in effect deprive it of its efficacy
and render its provisions nugatory.
167 Md. at 15, 172 A. at 356
Consequently, Lutz, while giving each of the parties comfort, if he or it first
assumes the correctness of his or its ultimate position, leaves to us the decision
whether the statute dealt with the entire subject matter or whether it did not
address the subject matter covered by the common law.
The later case of State v. Gibson, 4 Md.App. 236, 245-47, 242 A.2d 575, 58182 (1968), affirmed, 254 Md. 399, 254 A.2d 691 (1969), in an opinion by
Robert C. Murphy, presently Chief Judge of the Maryland Court of Appeals,
does much to point the way. Statutory manslaughter by automobile was
deemed to have replaced, and not merely to have supplemented or provided an
additional alternative to, common law involuntary manslaughter. The opposite
result inasmuch as the Legislature intended to deal with an entire subject matter
was rejected as incongruous. All the arguments urging strict construction of
statutes in derogation of common law are canvassed, yet held unavailing in
light of the cardinal rule in the construction of statutes: effectuation of the real
and actual intention of the Legislature.
We find it equally difficult to accept that the General Assembly of Maryland in
1868 meant to keep the common law right of inspection of the stock ledger

alive when the statute it passed did everything for the shareholder that the
common law did and more. That was a classic case of "deal[ing] with an entire
subject matter," a point principally relied on in Gibson.
9

Caspary also quotes from H.M. Brune, Maryland Corporation Law and Practice
Sec. 383, p. 445 n. 26 (Rev.Ed.1953):
The further restriction of the statutory right under the 1951 revision would
permit a persuasive argument to a court of equity to grant an application by a
substantial stockholder for leave to examine the books, although he had not
held his stock for a sufficient period or could not otherwise qualify under the
statute.
The difficulty there, however, is that the remarks were aimed only at the six
months' holding requirement added to the statute in 1951 and not to the 5%
requirement introduced in 1908. Indeed, by the use of the adjective
"substantial" before "stockholder," the author seems to accept that, whatever
might be the case as to the newly added six months' holding requirement, he
was proceeding on the assumption that the 5% necessity still generally
obtained.
It should be pointed out that the quotation from Brune is from a footnote to text
which states:
The statutory right, however, is possibly supplemental to the common-law right
of reasonable access to by-laws, minute books and stockholders' lists, and may
not supersede such right altogether.
(Emphasis added).
That is no ringing endorsement of the Caspary position of course. Mr. Brune's
heart could hardly have been in it, for, when he later appeared as counsel for
the plaintiffs in Parish, he did not even advance the contention despite the fact
that the defendant corporation set forth the opposing arguments in its brief.
Nor, as we have pointed out, did the Maryland Court of Appeals find any merit
in the point.

10

H.M. Brune, Maryland Corporation Law and Practice Sec. 3, p. 5 n. 36

(Rev.Ed.1953) states:
This Act [the 1908 revision] was a landmark in the development of state
corporation statutes and was in part copied in certain other states. See
Ballantine, Calif.Corp.Laws (1932), esp. preface, p. v. It was largely the work
of the late Joseph C. France, Esq., author of "Principles of Corporation Law."

France, in his Principles of Corporation Law Sec. 58, p. 101 (1914), had this to
say:
Prior to the revision of 1908, it was the right of any stockholder to demand a
personal inspection of the books at any reasonable time .... The present law
limits this right to any person or persons holding in the aggregate five per cent.
of the capital stock, or of any class thereof if two or more classes have been
issued.
France certainly meant that the 1868 statute was no longer in effect. It is
unlikely, to the point of impossibility, that France believed there was,
nevertheless, a common law right to inspect, even by a shareholder with less
than 5% simply upon showing a proper purpose, yet said nothing about it. He
no doubt believed the 1908 statute controlled, and had not been intended to
revive a contradictory common law right abrogated in 1868.
11

The dissent emphasizes for purposes of the argument it advances that the 1868
statute "broadened" the common law right of inspection, and so should not be
deemed to have abrogated the common law. With respect, that is no more than
a play on words. For every action there is an equal and opposite reaction. Here
at least the statute may as well be looked at as one "narrowing" the
corporation's right to restrict access to documents, including the stock ledger

12

To illustrate why the circumstances lead inescapably to a conclusion that, in

1868, abrogation of the common law had occurred, imagine a plaintiff, in 1870,
1880, or 1890, suing to enforce his right of access to the stock ledger. Of sturdy
stock, he disavows any intention to resort to that new fangled invention of the
devil, statutory law. He insists on having his good old common law right of
inspection
Judges may have been less busy then than they are today. Nevertheless, it is
hard to imagine one taking kindly to the idea that he would have to sit through a
day of heated legal battle over whether the plaintiff's purpose was proper, when
the legislature had written out of the law that very requirement. The judge
surely would peremptorily have disallowed the contention that the common law
right remained extant and enforceable.

13

Where the intent to abrogate is discerned, the language of Maryland

Corporations and Associations Article Sec. 1-102(c) has no pertinence. It
states:
The requirements of this article are in addition to and not in substitution of any
other requirements of law relating to any particular corporation or class of
corporations.

There is not another requirement of law extant when it has been previously
abrogated by the legislature.
14

15

A statute by its nature operates prospectively and deals with the matter it
pertains to on a generalized basis. So viewing the matter, the Maryland General
Assembly should be deemed to have appreciated that most shareholders have
the well-being of their corporation at heart, and so their purposes would be
proper
It is elementary, of course, that, if the Legislature had wanted, in 1908, to
revive the pre-1868 common law it could, by appropriate use of language, have
done so. Thus, in Neal v. State, 45 Md.App. 549, 413 A.2d 1386 (1980), the
Maryland Court of Special Appeals, in dealing with the common law crime of
indecent exposure, which had been supplanted by the language of a 1967
statute, held that it was revived by a 1977 enactment. The reason, however, was
expressly because the General Assembly said that such was its intent. After a
laconic reference to a common law theory of revival where an abrogating
statute has been repealed, the court held: "Even without the revival principle to
guide us, the express intent of the Legislature is unmistakable." Neal, supra, 45
Md.App. at 551, 413 A.2d at 1387-88. (Emphasis supplied)
The 1977 statute explicitly provided that:
Every person convicted of the common-law crime of indecent exposure, is
guilty of a misdemeanor and shall be punished by imprisonment for not more
than three years or a fine of not more than $1,000, or both.
Id. The Maryland Court of Special Appeals reasonably concluded: "By alluding
to the common law crime, however, its understanding and its intent were
manifest." Neal, supra, 45 Md.App. at 551, 413 A.2d at 1388.
Two aspects of Neal are consequently also manifest. First, it did not rely on sub
silentio revival. Second it highlights the distinction from the case sub judice by
placing its trust in what the Legislature clearly said it meant. Significantly
absent in the 1908 statute is any revival language. The General Assembly could
have said: "Besides introducing a 5% requirement for exercise of the existing
unlimited right of inspection, we also intend to allow the common law right of
inspection to any stockholder who demonstrates a proper purpose." But that the
Legislature did not say, and that completely sets the case apart from Neal.

16

Judge William C. Walsh, a former member of the Maryland Court of Appeals,

was the chairman

17

A federal claim was also initially asserted in the complaint as a jurisdictional

predicate. The parties have both conceded that the federal claim is now moot.
In its present posture, this is solely a diversity case
18

See Courts and Judicial Proceedings Article of the Annotated Code of

Maryland Sec. 12-601

19

The Maryland General Assembly has, today, full scale annual sessions. In
1908, it met only in alternate years. The 1867 Maryland Constitution in Article
III, Section 13 provided that the General Assembly should, for not longer than
ninety days, meet every second year, "and at no other time unless convened by
Proclamation of the Governor." Amendments in 1947, 1964 and 1970 gradually
brought us to the present posture of annual ninety day sessions

Plaintiff Caspary, having a current investment of approximately $3,300,000 in

defendant, sought inspection to learn of the identity of other stockholders in
order to solicit their proxies to oust what he considered to be an inefficient and
inept management. The district court did not consider the issue of whether this
purpose was a "proper" one, since it held that plaintiff had no common law
right of inspection, but instead had an unqualified statutory right of inspection
only if he, alone or with others who might join him, owned an aggregate of 5
percent of the outstanding stock of any class. In this case, such a percentage of
ownership would represent an investment of in excess of $55,000,000.
Notwithstanding that neither the district court nor the majority reaches this
issue, it is virtually conceded by defendant that plaintiff's purpose is a "proper"
one. See infra at text accompanying n. 16

3 H. Oleck, Modern Corporation Law Sec. 1555, p. 604 (1959) refers to one of
the first English cases recognizing the right, Dominus Rex. v. The Fraternity of
Hostmen in Newcastle-Upon-Tyne, 25 Str. 1233, 93 Eng.Rep. 1144 (KB 1745)

Section 2-513 reads as follows:

(a) In general.--One or more persons who together are and for at least six
months have been stockholders of record or holders of voting trust certificates
of at least 5 percent of the outstanding stock of any class of a corporation may:
(1) In person or by agent, on written request, inspect and copy during usual
business hours the corporation's books of account and its stock ledger;
(2) Present to any officer or resident agent of the corporation a written request
for a statement of its affairs; and
(3) In the case of any corporation which does not maintain the original or a
duplicate stock ledger at its principal office, present to any officer or resident

agent of the corporation a written request for a list of stockholders.

(b) Procedure by corporation after request.--Within 20 days after a request for
information is made under subsection (a) of this section, the corporation shall
prepare and have available on file at its principal office:
(1) In the case of a request for a statement of affairs, a statement verified under
oath by its president or treasurer or one of its vice-presidents or assistant
treasurers which set forth in reasonable detail the corporation's assets and
liabilities as of a reasonably current date; and
(2) In the case of a request for a list of stockholders, a list verified under oath
by one of its officers or its stock transfer agent or registrar which sets forth the
name and address of each stockholder and the number of shares of each class
which the stockholder holds.
4

Section 2-512 reads as follows:

(a) In general.--Any stockholder, holder of a voting trust certificate in a
corporation, or his agent may inspect and copy during usual business hours any
of the following corporate documents:
(1) Bylaws;
(2) Minutes of the proceedings of the stockholders;
(3) Annual statements of affairs; and
(4) Voting trust agreements on file at the corporation's principal office.
(b) Inspection of stock records.--(1) Any stockholder or holder of a voting trust
certificate in a corporation other than an open-ended investment company may
present to any officer or resident agent of the corporation a written request for a
statement showing all stock and securities issued by the corporation during a
specified period of not more than 12 months before the date of the request.
(2) Within 20 days after a request is made under this subsection, the
corporation shall prepare and have available on file at its principal office a
sworn statement of its president or treasurer or one of its vice-presidents or
assistant treasurers which states:
(i) The number of shares or amounts of each class of stock or other securities
issued during the specified period;
(ii) The consideration received per share or unit, which may be aggregated as to

all issuances for the same consideration per share or unit; and
(iii) The value of any consideration other than money as set in a resolution of
the board of directors.
5

Indeed, another provision of the Maryland general corporation law tends to

preserve common law rights. Section 1-102(c) of the Corporations and
Associations Article states that "[t]he provisions of this article are in addition to
and not in substitution of any other requirements of law relating to any
particular corporation or class of corporation." (emphasis added) Moreover,
Sec. 1-102(d)(1) which repeals laws inconsistent with the Article limits its
repealing effect to any inconsistent "provision of the Code." (emphasis added).
The carefully chosen language establishing the Article as supplementary to
other "law" but repealing only inconsistencies within "the Code" supports my
view of the statutory regulation of corporations as having not been intended to
be the exclusive source of law in the area

For still other recent cases consistent with the authorities named in the text, see
In re A Special Investigation # 202, 53 Md.App. 96, 452 A.2d 458, 462 (1982);
Funkhouser v. State, 51 Md.App. 16, 440 A.2d 1114, 1116 (1982); Keesling v.
State, 288 Md. 579, 420 A.2d 261 (1980); Baltimore County v. Xerox Corp.,
286 Md. 220, 406 A.2d 917, 921 (1979)

Parish, supra, 242 A.2d at 549, explains that when the Maryland legislature
concluded to broaden the right of inspection by removing the requirement of a
proper purpose it adopted the 5 percent restriction "to prevent an abuse of the
common law right of a single stockholder to demand inspection ... when the
amount of the stock holding was insignificant compared to the whole stock
structure." (emphasis in original). As will be discussed further, infra at n. 15,
the reference in Parish must be to the completely unqualified right existing after
the 1868 broadening of the right of inspection. I am not so quick to believe, as
the majority appears to be, that the same courts extolled for their care and
deliberation will turn a "proper purpose" showing, the burden of which is on the
plaintiff, into a meaningless formality under which every holder of a single
share can procure the shareholder list at a whim. With the affirmative burden
on the party seeking disclosure, see Parish at 547, demonstration of a "proper
purpose" requires more than the mere absence of a plaintiff who appears "to be
acting malevolently or contrary to corporate best interests." Ante, at 791. We
need not catalogue what purposes are "proper" here, however, because
Caspary's, if genuine, is well-recognized as such. See supra at n. 1; infra at text
accompanying n. 16

Cf. Honaker v. W.C. & A.N. Miller Development Co., 285 Md. 216, 401 A.2d

1013, 1016 (1979)

9

The invocation of common law as a supplement to Maryland's statutory

corporate law has also been accomplished by the federal courts, even where a
greater conflict with the statutory provision than is suggested here appeared.
For example, despite statutory requirements of two-thirds shareholder approval
as prerequisite to the dissolution of corporate property as a whole, "they are not
to be taken as in derogation of the [common law] right on the part of the
directors, by their own vote, without more, to place the corporation in
bankruptcy." In re Pneumatic Tube Steam Splicer Co., 60 F.2d 524, 526
(D.Md.1932)

10

If the majority concedes only that the six months' holding requirement might be
waived upon a showing of proper purpose in an appropriate case, as it
apparently does, ante at 790 n. 8, it offers no reason for finding the 5 percent
limit inflexible but the six-month provision tempered by common law
principles. If one is so qualified, so must be the other

11

With regard to this and other New York authorities, the majority seeks to
distinguish them on the ground that the New York Corporation statute had a
savings clause, expressly preserving a stockholder's common law right of
inspection. As previously suggested in n. 5 and the accompanying text,
Maryland does have a counterpart. Moreover, the absence of a savings clause is
irrelevant until it is shown that some statute is inconsistent with the common
law, and I have shown that there is no inconsistency

12

Pertinent among the New York authorities are: Weisfeld v. Spartan's Industries,
Inc., 58 F.R.D. 570, 579 (S.D.N.Y.1972) (owner of only 50 out of over 3.5
million shares of common stock granted access to shareholder's list for purpose
of soliciting co-plaintiffs in derivative suit); and Rockwell v. SCM Corporation,
496 F.Supp. 1123, 1125-26 (S.D.N.Y.1980) (common law right of access to
shareholder list upon showing of "proper purpose" not displaced by statutory
unqualified right; "the statutory right of inspection was intended to supplement
rather than replace the common law.")

13

I recognize that other than the opinion of the district court in the instant case,
there is another contrary authority emanating from the District Court of
Maryland in an unpublished opinion on a collateral matter. With it I respectfully
disagree. As a rule, we do not even treat unpublished opinions of our own court
as binding precedents. That it was rendered by a judge who was a Maryland
lawyer before he became a judge does not give it any special persuasiveness
for, as a neutralizing factor, I am bound to recognize that he did not previously
specialize in corporate practice. Nor is this an issue that repeatedly arises in

diversity cases with which the judge of the forum state might be expected to
have acquired special facility, as was the situation regarding a state statute of
limitations in the case cited by the majority, Hartford v. Gibbons & Reed Co.,
617 F.2d 567 (10 Cir.1980)
14

This rule is followed in other jurisdictions as well. See, e.g., State v. General
Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353, 357
(1959) ("When a statute repeals the common law and the statute itself is
subsequently repealed, the common law is revived and when a statute which is
declaratory of the common law is repealed the common law remains in force
for the reason that the statute was an affirmance of the common law."); North
Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962) (common law
supplanted by statute in 1873 revived by repeal of statute in 1955); Lau v.
Nelson, 89 Wash.2d 772, 575 P.2d 719, 721 (Wash.1978) ("... the repeal of a
statute does not operate to destroy vested rights, or rights of a common law
nature which are further embodied in the repealed statute, the latter existing
independently as enforceable rights."); State v. Buck, 275 N.W.2d 194, 197
(Iowa 1979) (criminal law); Makin v. Mack, 336 A.2d 230, 234-35
(Del.Ch.1975) (common law landlord-tenant rule revived upon 1972 statutory
recodification not addressing specific issue)

15

The majority draws the inference that the 1908 act was specifically intended to
abrogate the common law qualified right from Judge Barnes' elaboration of the
history of Sec. 2-513, in which he states that the 5 percent restriction was added
to prevent abuse "of the common law right." Parish, supra, 242 A.2d at 549; see
ante, at 787. But there is no solace for the majority to be drawn therefrom. If in
1908 there was an existing common law right to be abused, the majority's major
premise--that the common law right was laid to rest in 1868--obviously cannot
be true. On the other hand, it seems strange that the legislature would have
been constricting the common law right in 1908, since for several decades
stockholders had no occasion to abuse the right when they could obtain all they
wanted under the far more liberal statutory right. With all due respect to the
precision of Judge Barnes' writing, his reference to what was abused can only
have been intended to refer to the unqualified right of inspection prevailing
prior to the 1908 revision. Parish, even as dictum, cannot sensibly be
understood to suggest a legislative intention to abolish the common law right

16

In this connection I note that plaintiff has offered to bear all costs of inspection
and copying, thus undercutting any argument of undue burden on defendant in
producing such a list

17

The power to do so has long been recognized. See Empire Southern Gas Co. v.
Gray, 29 Del.Ch. 95, 46 A.2d 741, 743 (1946); Campbell v. Loew's, Inc., 36

Del.Ch. 533, 134 A.2d 565, 567 (1957); cf. Vanadium Corp. of America v.
Susquehanna Corp., 203 F.Supp. 686, 699-700 (D.Del.1962) (citing cases)